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Court of AppealDismissedCivil Application (extension of time) arising from Milimani ELC Suit No. 12 of 2019

Kabete Dam Limited & another v Ng'ang'a & another (Civil Application E009 of 2023) [2025] KECA 1969 (KLR)

Court of Appeal
21 November 2025
1,129 words in judgment
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The bottom line

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Kenya's Court of Appeal dismissed Kabete Dam's bid to file a late appeal, because nearly 15 months of unexplained delay killed its chances.

What this practically means

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Executive summary

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This is a ruling by D. K. Musinga, JA (President), sitting as a single judge of the Court of Appeal at Nairobi, on a notice of motion dated 13th January 2023 in which the applicants, Kabete Dam Limited and its director David Kabubii Kuria, sought enlargement of time to file a notice of appeal against a judgment of K. Bor, J. in Milimani ELC Suit No. 12 of 2019 delivered on 16th January 2020. The notice of appeal was filed on 17th February 2020, some 17 days out of time. The applicants blamed their former advocates for indecision between appeal and review; the respondents, who had paid Kshs. 31,500,000 under an off-plan sale agreement and held a decree for refund plus Kshs. 38,000,000 damages for loss of bargain, opposed the application, citing unexplained delay, a parallel pending application (Civil Application Nai. 111 of 2020), and lack of merits. Applying the principles in Fakir Mohamed v Joseph Mugambi & 2 Others, the judge held that the applicants produced no correspondence evidencing prompt instructions to their former advocates, and that the nearly 15-month silence between the change of advocates on 29th October 2021 and the application on 13th January 2023 was inordinate and unexplained. The intended appeal was found to have no good chances of success, and prejudice to the decree-holding respondents was plain. The application was dismissed with costs to the respondents.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicants should be granted enlargement of time for filing the notice of appeal filed out of time on 17th February 2020
  2. 2.Whether the delay was explained and whether it was inordinate
  3. 3.Whether the intended appeal has chances of success
  4. 4.Whether the respondents would suffer prejudice if the extension were granted

Key legal issues

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01

Whether the applicants explained the delay in filing the notice of appeal out of time

Holding

The delay was not explained. No correspondence with former advocates was annexed, and no explanation was offered for the period between 17th February 2020 and 13th January 2023.

Reasoning

The applicants blamed their former advocates for indecision between appeal and review, but produced no instructions or correspondence evidencing prompt action after judgment. Even if advocates were at fault, the new advocates came on record on 29th October 2021 yet waited nearly 15 months before applying, an inordinate, unexplained delay which disentitles them to the discretion.

p. 3
02

Whether the intended appeal has chances of success

Holding

The court was not persuaded that the intended appeal had good chances of success after perusing the draft grounds, the impugned judgment and the replying affidavit.

Reasoning

The respondents had paid Kshs. 31,500,000 under an offer for an off-plan sale of House No. 7 on LR 2951/36 and held a decree for refund and Kshs. 38,000,000 damages for loss of bargain. The court found the appeal frivolous and held that granting the orders would be highly prejudicial to respondents who paid the money years ago.

p. 3

Legal principles established

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  • In an extension-of-time application the court exercises an unfettered discretion but must consider the period of delay, the reason for the delay, the chances of success of the intended appeal, and the degree of prejudice to the respondent
  • Unexplained inordinate delay disentitles an applicant from the court's favourable discretion in extension-of-time applications

Court orders

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  1. 1.The applicants' notice of motion dated 13th January 2023, insofar as it seeks enlargement of time for filing the notice of appeal, is dismissed

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Environment and Land Court, Milimani
ELC Suit No. 12 of 2019
Jurisdiction invoked
Discretionary jurisdiction of a single Judge of the Court of Appeal to enlarge time for filing a notice of appeal under the Court of Appeal Rules

Relief refused

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Enlargement of time for filing the notice of appeal

Unexplained inordinate delay of nearly 15 months between the change of advocates and the application, no good chances of success, and prejudice to the respondents who hold a decree

p. 3

Costs

Application dismissed with costs to the respondents

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In an application of this nature, the Court exercises unfettered discretion, but in doing so, the Court must consider the period of the delay, the reason for the delay, possibly the chances of success of the intended appeal, and the degree of prejudice the respondent may sufier if the application is granted.
p. 2Principles governing extension of time
This unexplained inordinate delay in itself disentitles the applicants of this Court's discretion in their favour.
p. 3Effect of unexplained inordinate delay
All in all, I find this application unmeritorious and dismiss it with costs to the respondents.
p. 3Final orders and costs

Issues in the judgment

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minor

The ruling refers to a similar pending application by the applicants (Civil Application Nai. 111 of 2020) raised by the respondents as an abuse of process, but the court makes no finding on it

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kabete Dam Limited & another v Ng'ang'a & another (Civil Application E009 of 2023) [2025] KECA 1969 (KLR)", Case Analysis (2025). Civil Application (extension of time) arising from Milimani ELC Suit No. 12 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1969/eng@2025-11-21

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.